Director of Public Prosecutions v Alfaro

[2015] VCC 1574

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00626

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSE ALFARO

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 November 2015
CASE MAY BE CITED AS:	DPP v Alfaro
MEDIUM NEUTRAL CITATION:	[2015] VCC 1574

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Bhai
For the Accused	Mr G. Jones

HIS HONOUR: 

1Jose Alfaro, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely cocaine.  You are 63 years of age and you pleaded guilty at a reasonably early opportunity.  I am satisfied that that plea of guilty is accompanied by appropriate remorse and you must of course get the utilitarian benefit of it.  I also take into account that there has been a delay of some two years since the offending and that is of genuine significance in your particular situation.  At 63, it is a period of time which matters.

2Unfortunately, you do have prior convictions and findings of guilt.  You have three, as I count them, prior convictions or findings of guilt for supplying a drug of dependence and indeed, one occasion, were imprisoned for a period of something in the order of 18 months.  Those prior convictions are now some 20 years of age and therefore are not of such significance as they might have been.  Nevertheless, you have been gaoled for this before and you are well aware of the consequences of such conduct.

3Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

4The circumstances of the offending are outlined in the prosecution opening, which has been tendered.  It is a little difficult to work out exactly what this is all about or exactly what your role in all this was.  I can only sentence on the basis it was put to me by your counsel and which the Crown are not really in a position to dispute.

5The circumstances were that in November 2013, police had a telephone intercept warrant on a phone used by a Mr Sanchez-Restrepo.  Over the next few days, from 18 November, a number of phone calls were intercepted, which clearly indicated that a drug transaction was to take place in Melbourne and that was to occur on 21 November.  It is clear that there is a significant amount of drugs that were to be transferred and a significant amount of money to be paid.

6On 21 November, a phone conversation confirmed that the package had been, "Split in two" and that the money will all be paid together.  Your first appearance on the material before me is on that day when you are telephoned, it is confirmed, that you would be arriving at around 7 o'clock.

7At about 7.55 pm, you contacted Restrepo Orengo and told him that you had checked into the Rydges Hotel in Exhibition Street in Melbourne.  You were in Room 610.  At about 9 pm that evening, Orengo arrived at the hotel with a Salazar.  Mr Orengo had with him a cooler bag and it was taken into the hotel.  They entered the foyer and were approached by you and Juan Luna.  All four of you went to Room 610.  It seems common ground that the total of the drugs was in that cooler bag.

8Mr Salazar sat on a couch and you and Mr Restrepo Orengo went to another area of that hotel room.  Salazar handed the cooler bag to Mr Luna, who apparently opened it and checked the contents, walked towards you and Mr Restrepo Orengo and said, "It's here."  Luna returned to the lounge area and followed shortly after by Restrepo Orengo and you.  Mr Orengo was carrying a plastic bag, which had not been seen on him before.  Orengo and Salazar left the hotel and Orengo placed that plastic bag into his car boot.  Ten minutes later, police intercepted that car and found the bag, which contained $110,000 in cash. 

9Later that evening, you were arrested walking along Bourke Street and had swipe cards for the Rydges Hotel on you.  You were taken back to Room 610.  When asked if you had anything you wished to declare or talk about, you conceded that you had cocaine and a short conversation took place because of your limited English.  You then showed police the bag, which contained a white powder, which was later analysed.  There was 496.8 grams of substance, it being cocaine with a purity of 62 per cent.

10Police then searched another room in the hotel where a further bag was found with 493.4 grams of cocaine and a further $1,450 in cash.  You were not interviewed because of your difficulty in speaking English. You were held in custody until 31 January 2014.

11The maximum penalty for this offence is 15 years' imprisonment.

12The offending has to be regarded as serious.  Whilst it is not a commercial quantity, it is not far short of it and any sentence imposed must contain adequate general and specific deterrence as well as denunciation and appropriate punishment.  Having considered the various sentencing options and bearing in mind that you reside in New South Wales, I have determined that the only appropriate sentence is one of an active custodial.

13I then look to the matters pertinent to you in terms of the length of such a sentence.  I am aware that you have now been on remand for some 70 days and it is always difficult for somebody to be sent back having been ultimately bailed.  Of real significance in your situation is that the co-accused, Mr Restrepo Orengo was sentenced in this court by Her Honour Judge Hampel on 5 March of this year.  He was sentenced to be imprisoned for a period of four years with a minimum term of two and a half years.  He had no prior convictions.  However, he was sentenced for a commercial quantity.  He would seem to have been sentenced on the basis that the drugs effectively were his and he was in possession of the money.  What he pleaded to obviously carried a maximum penalty of 25 years' imprisonment.  In other words, despite the fact that he had no prior convictions, his role in this is clearly greater than yours.

14In his overall circumstances, having read carefully Her Honour's sentencing remarks, I think that Mr Orengo was a very lucky man.

15However, taking all that into account, I am restrained by that sentence and were it not for your prior convictions, you would be in a very different position to Mr Orengo.

16Tendered on your behalf were reports from Mr Watson-Munro, a forensic psychologist.  I will refer to those in a moment.  Sworn evidence was given before me by your nephew who explained your personal circumstances.  I accept that in your situation, an active custodial sentence will be particularly difficult for you.  You have very poor English and your family lives in New South Wales.  Accordingly, there will be a degree of isolation in the sentence that you undergo and you have very few, I suspect, if any visitors.  I also take into account that you do not have good physical health and that you have been diagnosed by Mr Watson-Munro as having major depression.  It was not put to me that Verdins is of great import here and clearly has no relationship to the moral culpability.  I think those matters at your age, of 63, will weigh heavily upon you in any gaol sentence that you undergo.

17However, at the end of the day, the offending was done for no purpose other than money.  You are not addicted to drugs and there can be no other mitigating circumstances.  It is a bit difficult to work out what your personal situation was.  It has been put to me that you were under financial difficulty and I will refer to that again in a moment.

18The report from Mr Watson-Munro goes into some detail about your background and I will simply refer briefly to it.  It is clear that that report will remain on file and is therefore available to anybody with a genuine interest in it.

19Your background is unfortunate.  You were born in Chile in February 1952 with a large family of whom you are the youngest.  There would appear a predisposition to cancer in the family and a number of your siblings and your parents have all now passed on.  You were educated to the age of 14, but after your father's death, you had to leave school early and work to support the family.  You worked in Chile in a petrol station for about five years and then did part-time work on a farm.  You were able to emigrate to Australia in 1974 following the Pinochet coup.  I am well aware of the circumstances of what occurred in your former country back then and they do not need to be gone through again here.  It was certainly a very frightening time for a lot of people and I have no reason to think that you could be affected otherwise.

20When you came to Australia, you worked as a cleaner for approximately five years.  You worked in the construction industry as a steel fixer and then as a carpenter for about 15 years.  Over that period of time, you suffered shoulder problems and eventually had to stop work because of chronic pain.  You have now been unemployed for ten years, receiving unemployment benefits.

21I accept, as your counsel put to me, that there has been financial distress and financial difficulty.  You have two children with a wife that you have now been separated from for some 20 years.  Those children are aged 34 and 30 and it would appear that the son, who is the 34 year old, and you are estranged.

22I do not know how that work history fits in with the prior convictions and the like, and I am not going to go into it.

23You told Mr Watson-Munro that you do not use illicit drugs and that you do not have an alcohol dependence.  You have two prior convictions for exceeding whatever the limit is in New South Wales.  I find the alcohol aspect of it a bit surprising, but none of those factors play a part in this sentencing.  What it comes down to is that a 63 year old man who has done it before and has received a very significant gaol sentence before as to be sentenced again.

24The report of Mr Watson-Munro goes on to point out the major depression, as I have referred to, as well as an anxiety disorder.

25The prospects of your rehabilitation are indeed up to you.  You have subsequent to this offending, finally sought assistance for the psychological damage that was probably caused to you as a child.  The risk of your reoffending is hard to ascertain because you have offending in this way before on more than one occasion.  However, at your age and in these circumstances, all I can really do, bearing in mind that I consider myself very much handicapped in this sentence by the sentence passed upon your co-accused, is to give you a more generous opportunity for parole than might otherwise be the case bearing in mind your criminal history.

26I have taken into account all the matters referred to by your counsel in a laudably concise plea, but as I said, the consequences of this sort of offending have to be sufficient to deter like-minded people from doing it and hopefully to deter you from doing it again.

27Accordingly, on the charge of trafficking, you are sentenced to be imprisoned for a period of two years.  I direct that you serve a minimum term of one year before becoming eligible for parole and I direct that 70 days be reckoned as having been served under this sentence.  So that you are aware of the benefits of that plea of guilty and saving to you in terms of active gaol time, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of three years with a minimum of two years.

28Are there any other orders that I have to make?

29MS BHAI:  No, Your Honour.

30MR JONES:  As the court pleases.

31HIS HONOUR:  All right.  I thank counsel for that.

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